Pardovani v. Crown Building Maintenance Co.

Background

John Pardovani sued Crown Building Maintenance Co., doing business as Able Building Maintenance; Jazz at Lincoln Center, Inc.; Richard Cruz; and Joseph Miele. He asserted racial-discrimination and retaliation claims under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York City Human Rights Law. Miele brought counterclaims for defamation and intentional infliction of emotional distress based on an email Pardovani sent to Miele’s employers.

Pardovani worked at a Jazz at Lincoln Center site under successive service contractors and was retained by Able when it assumed the contract in 2011. Miele supervised him from August 2011 through August 2016. Pardovani complained several times about workplace conduct, including alleged racial harassment. In August 2015, he complained that Cruz, Miele, Ken Luciano, and Kimo Luciano had harassed and discriminated against him. He was later suspended with pay for about a month while the complaint was investigated. The investigation found that it was more likely than not that Able and Jazz at Lincoln Center employees had used a racial slur, although the investigator concluded that Pardovani’s discrimination complaint was unfounded.

Legal standard

The court applied the summary-judgment standard under Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate only when there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. The court must view the evidence favorably to the party opposing the motion and may not resolve credibility disputes that belong to a jury.

Able’s motion

The court denied Able and Miele’s motion for summary judgment on Pardovani’s hostile-work-environment and retaliation claims.

For the hostile-work-environment claims, the court found evidence that supervisors associated with Able and Jazz at Lincoln Center repeatedly and offensively used a racial slur in the workplace. The court concluded that a reasonable factfinder could determine that the conduct was sufficiently severe or pervasive to create a hostile work environment and could find Able responsible for conduct by its supervisors. The court rejected Able’s arguments that Pardovani could not have been offended because he had used the word on social media and that his allegations were caused by paranoia. Those arguments raised credibility issues that could not be resolved on summary judgment.

Able also relied on the Faragher/Ellerth defense, which can protect an employer from liability when it took reasonable steps to prevent and correct harassment and the employee unreasonably failed to use those procedures. The court found that Able established the first part of that defense as a matter of law, but that a factual dispute remained about whether Pardovani unreasonably failed to provide information needed to investigate his complaints. The court therefore allowed the hostile-work-environment claims under Section 1981, Title VII, and the New York City Human Rights Law to proceed.

For retaliation, Able argued that Pardovani’s paid suspension was not an adverse employment action. The court held that a paid suspension can qualify as an adverse action in some circumstances and found a factual dispute about whether the suspension was reasonably based on disciplinary procedures. The court therefore allowed Pardovani’s federal and New York City retaliation claims to proceed.

Jazz at Lincoln Center’s motion

The court denied Jazz at Lincoln Center and Cruz’s motion for summary judgment. They argued that Jazz at Lincoln Center had no employment relationship with Pardovani and therefore could not be liable for employment discrimination. Pardovani argued that Jazz at Lincoln Center and Able were joint employers.

The court considered factors including hiring and firing authority, administration of discipline, payroll and records, direct supervision, and participation in collective bargaining. The record showed that Jazz at Lincoln Center did not terminate Able employees, maintain their administrative records, pay them, provide their insurance, or participate in collective bargaining. But factual disputes remained about whether Jazz at Lincoln Center influenced hiring, had a role in disciplining Able employees, and directly supervised Pardovani. Because a reasonable factfinder could conclude that Jazz at Lincoln Center was a joint employer, summary judgment was denied.

Pardovani’s motion on Miele’s counterclaims

The court granted Pardovani’s motion in part and denied it in part.

On defamation, the court allowed claims to continue based on statements that Miele was involved in discriminatory incidents, that Miele resigned before receiving a termination notice, and that Miele or Ken Luciano may have been involved in placing a swastika in a locker room. The court held that factual disputes prevented resolution of those theories on summary judgment, including disputes about the truth of the statements and whether Pardovani had a good-faith basis for making them.

The court dismissed the defamation claim based on Pardovani’s statement that Miele was familiar with the Latin Kings. It held that this was a general statement about Miele’s character and did not qualify as defamation per se; Miele had not claimed special damages. The court also dismissed the defamation claim based on Pardovani’s statement that Miele would be a liability rather than an asset to Barnard College. That statement was a non-actionable opinion based on the alleged discrimination, rather than an independently actionable statement of fact.

The court dismissed Miele’s intentional-infliction-of-emotional-distress counterclaim. It held that a single email accusing Miele of discrimination was not sufficiently extreme and outrageous and that the claim was also covered by the traditional tort theory of defamation.

Disposition

The court denied Able and Miele’s motion for summary judgment. It denied Jazz at Lincoln Center and Cruz’s motion for summary judgment. It granted in part and denied in part Pardovani’s motion for summary judgment on Miele’s counterclaims. The court also directed counsel to appear for a telephonic status conference.

Judge and source discrepancy

The supplied case metadata identifies Sidney Stein as the judge, but the opinion text identifies J. Paul Oetken as the District Judge and bears J. Paul Oetken’s signature. This summary follows the judge named and signing the opinion.